Ohio begins provisional ballot counting

COLUMBUS, Ohio (AP) -- Ohio election officials were allowed Saturday to begin counting provisional ballots after a last-minute court battle that threatened to inject a layer of uncertainty in the process.

The stakes are smaller with the presidential race decided, although Ohio has three state House races whose outcomes are still unknown. They could determine whether Republicans will increase their majority.

Republicans have a 58-38 edge, but if that grows to 60 or more, the GOP could automatically place ballot issues before voters.

Court battles over provisional ballot counting pitted Ohio Secretary of State Jon Husted, overseeing his first presidential election, against voter advocates including those representing homeless voters.

Federal appeals courts backed Husted twice, though not before federal judge Algenon Marbley of Columbus harshly criticized the secretary of state for actions he took late in the election process.

On Friday, the 6th U.S. Circuit Court of Appeals backed a directive Husted issued three days before the election, meaning that some provisional ballots without proper ID information can be thrown out. That decision overruled a Marbley decision earlier in the week.

Two weeks earlier, the same appeals court put on hold another Marbley ruling that said the state must count provisional ballots cast not just in the wrong precinct but in the wrong polling location altogether. The ballots are dubbed "wrong church, wrong pew," referring to both a mistaken polling place and a mistaken precinct.

Those victories were a relief to Husted, still stinging from losing a challenge by the campaign of President Barack Obama earlier in the fall that forced him to open polls to all voters on the last three days before Election Day, not just to overseas and military voters.

The day before the election, an exasperated Husted defended his order from Nov. 2 that required voters, not poll workers, to indicate the type of identification they had used, such as military ID or a utility ID, if they didn't have driver's licenses.

That indication amounted to a voter checking a box on a form instead of a poll worker.

"We're down to federal litigation over who fills out sections of forms," Husted told The Associated Press on Nov. 5. "Not whether it gets filled in, not the content of what goes in there, but who fills it out."

Husted also argued after the election was over that none of this would have litigated if Ohio wasn't a perennial battleground state.

He may have had a point: He had to be one of the country's few secretaries of state who gave election night briefings to reporters from England, Japan and Germany, among several other countries in Columbus reporting on the results.

Voter advocates cast the check-off issue in a more serious light. They said attorneys for Husted's office had told Marbley at an October hearing that determining the ID that was used was poll workers' responsibility, then changed course when the election-eve order was issued.

"Neither the state nor any other party is injured by counting these otherwise valid ballots of lawfully registered voters," the advocates said in a last-minute lawsuit to stop the change.

Marbley, an African-American judge who grew up in the South, told attorneys on more than one occasion that he took any allegation of voters being disenfranchised seriously because of his background.

During a hearing the day after the election, his voice rose as he challenged attorneys for Husted to explain themselves.

"Democracy dies in the dark," Marbley said, referring to the order Husted issued after business hours on the Friday before the election.

But on Friday, the 6th Circuit rejected Marbley's ruling that Husted had violated a previous court ruling and broken state law.

That paved the way for the provisional ballot counting to begin. Officials must certify the results by Nov. 27.